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THE 


ELECTORAL   VOTES 

OF   1876: 


WHO  SHOULD  COUNT  THEM,   WHAT  SHOULD 

BE  COUNTED,  AND  THE  REMEDY 

FOR  A    WRONG   COUNT. 


.FIELD. 


NEW   YORK: 
D.    APPLETON    AND    COMPANY 

549    &    551     BROADWAY. 

1877, 


APPLETONS'    PERIODICALS. 


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THE 


ELECTORAL   VOTES 

OF   1876: 


WHO  SHOULD  COUNT  THEM,   WHAT  SHOULD 

BE  COUNTED,  AND   THE  REMEDY 

FOE  A    WRONG   COUNT. 


BY 

DAYID  DUDLEY  FIELD. 


NEW   YORK: 
D.    APPLETON    AND    COMPANY, 

549    &    551     BROADWAY. v 

1877. 


RT 


COPYRIGHT  BY  D.  'XP^ETOJf  A^Et  .COMPANY,  1877. 


DR 


THE  ELECTORAL  VOTES   OF   1876. 


WHO  SHOULD  COUNT  THEM, 
WHAT  SHOULD  BE  COUNTED,  AND 
THE  REMEDY  FOB  A  WKONG  COUNT. 

THE  electoral  votes  of  1876  have  been  cast.  The  certifi 
cates  are  now  in  Washington,  or  on  their  way  thither,  to  be 
kept  by  the  President  of  the  Senate  until  their  seals  are  broken 
in  February.  The  certificates  and  the  votes  of  thirty-four  of 
the  States  are  undisputed.  The  remaining  four  are  debatable, 
and  questions  respecting  them  have  arisen,  upon  the  decision 
of  which  depends  the  election  of  the  incoming  President. 
These  questions  are :  Who  are  to  count  the  votes ;  what  votes 
aie  to  be  counted  •  and  what  is  the  remedy  for  a  wrong  count  ? 
I  hope  not  to  be  charged  with  presumption  if,  in  fulfilling  my 
duty  as  a  citizen,  I  do  what  I  can  toward  the  answering  of 
these  questions  aright ;  and,  though  I  happen  to  contribute 
nothing  toward  satisfactory  answers,  I  shall  be  excused  for 
making  the  effort. 

The  questions  themselves  have  no  relation  to  the  relative 
merits  of  the  two  candidates.  Like  other  voters,  I  expressed 
my  own  preference  on  the  morning  of  the  election.  That  duty 
is  discharged ;  another  duty  supervenes,  which  is,  to  take  care 
that  my  vote  is  counted  and  allowed  its  due  place  in  the  sum 
mary  of  the  votes.  Otherwise  the  voting  performance  be 
comes  ridiculous,  and  the  voter  deserves  to  be  laughed  at  for 
his  pains.  His  duty — to  cast  his  vote  according  to  his  con- 


M114750 


4  WHO    SHOULD    COUNT   THE    VOTES. 

science — was  clear  ;  it  is  no  less  his  duty  to  make  the  vote 
felt,  along  with  other  like  votes,  according  to  the  laws. 

The  whole  duty  of  a  citizen  is  not  ended  when  his  vote  is 
delivered  ;;  there  remains  the  obligation  to  watch  it  until  it  is 
duly  weighefl,  iji  adjusting  the  preponderance  of  the  general 

;  choice.;  Whatever  may  be  the  ultimate  result  of  the  count, 
whether  his  candidate  will  have  lost  or  won,  is  of  no  impor 
tance  compared  with  the  maintenance  of  justice  and  the  su 
premacy  of  law  over  the  preferences  and  passions  of  men. 

It  concerns  the  honor  of  the  nation  that  fraud  shall  not 
prevail  or  have  a  chance  of  prevailing.  If  a  fraudulent  count 
is  possible,  it  is  of  little  consequence  how  my  vote  or  the  votes 
of  others  be  cast ;  for  the  supreme  will  is  not  that  of  the  hon 
est  voter,  but  of  the  dishonest  counter  ;  and,  when  fraud  suc 
ceeds,  or  is  commonly  thought  to  have  succeeded,  the  public 
conscience,  shocked  at  first,  becomes  weakened  by  acquies 
cence;  arid  vice,  found  to  be  profitable,  soon  comes  to  be  tri- 

'  umphant.  It  is  of  immeasurable  importance,  therefore,  that 
we  should  not  only  compose  the  differences  that,  unfortu 
nately,  have  arisen,  but  compose  them  upon  a  basis  right  in 
itself  and  appearing  to  be  right  also. 

WHO    SHOULD    COUNT   THE    YoTES  ? 

This  is  the  first  question.  What  is  meant  by  counting? 
In  one  sense,  it  is  only  enumeration,  an  arithmetical  operation, 
which  in  the  present  instance  consists  of  addition  and  sub 
traction.  In  another  sense  it  involves  segregation,  separation 
of  the  false  from  the  true.  If  a  hundred  coins  are  thrown 
upon  a  banker's  counter,  and  his  clerk  is  told  to  count  the 
good  ones,  he  has  both  to  select  and  to  enumerate.  He  takes 
such  as  he  finds  sufficient  in  rnetal  and  weight,  and  rejects  the 
light  and  counterfeit.  So  when  the  Constitution  ordains  that 
"  the  votes  shall  then  be  counted,"  it  means  that  the  true  ones 
shall  be  counted,  which  involves  the  separation  of  the  true 
from  the  false,  if  there  be  present  both  false  and  true.  In  re 
gard  to  the  agency  by  which  this  double  process  is  to  be  per 
formed,  the  words  of  the  Constitution  are  few:  "The  Presi 
dent  of  the  Senate  shall,  in  the  presence  of  the  Senate  and 


WHO    SHOULD    COUNT    THE    VOTES.  0- 

House  of  Representatives,  open  all  the  certificates,  and  the 
votes  shall  then  be  counted."  What  would  one  take  to  be 
the  meaning  of  these  words,  reading  them  for  the  first  time  ? 
It  is,  that  somebody  besides  the  President  of  the  Senate  is  to 
count,  because,  if  he  was  to  be  the  counting  officer,  the  lan 
guage  would  naturally  have  been  that  the  President  of  the 
Senate  shall  open  all  the  certificates  and  count  the  votes. 
There  must  have  been  a  reason  for  this  change  of  phraseology. 
It  should  seem  to  follow,  from  these  words  alone,  that,  who 
ever  is  to  count,  it  is  not  the  President  of  the  Senate.  It 
should  seem  also  to  follow,  that  the  counting  is  to  be  doner 
not  in  the  presence  of  Senators  and  Representatives  as  indi 
viduals,  but  in  the  presence  of  the  two  Houses  as  organized 
bodies.  If  their  attendance  as  spectators  merely  was  intended, 
the  expression  would  naturally  have  been,  in  the  presence  of 
the  Senators  and  Representatives  or  so  many  of  them  as  may 
choose  to  attend.  The  presence  of  the  Seriate  and  House 
means  their  presence  as  the  two  Houses  of  Congress,  with  a 
quorum  of  each,  in  the  plenitude  of  their  power,  as  the  coor 
dinate  branches  of  the  legislative  department  of  the  Govern 
ment.  And  inasmuch  as  no  authorities  are  required  to  be 
present  other  than  the  President  of  the  Senate  and  the  two 
Houses,  if  the  former  is  not  to  count  the  votes,  the  two  Houses 
must. 

The  meaning  which  is  thus  supposed  to  be  the  natural 
one  has  been  sanctioned  by  the  legislative  and  executive  de 
partments  of  the  Government,  and  established  by  a  usage,  vir 
tually  unbroken,  from  the  foundation  of  the  Government  to 
the  present  year. 

The  exhaustive  publication  on  the  Presidential  Counts,  just 
made  by  the  Messrs.  Appleton,  leaves  little  to  be  said  on 
this  head. 

The  sole  exception  suggested,  in  respect  to  the  usage,  is 
the  resolution  of  1789,  but  that  is  not  really  an  exception. 
We  have  not  the  text  of  the  resolution.  We  know,  however, 
that  there  was  nothing  to  be  done  but  adding  a  few  figures.. 
There  was  no  dispute  about  a  single  vote,  as  all  the  world 
knew.  But  taking  the  resolution  to  have  been  what  the 
references  to  it  in  the  proceedings  of  the  two  Houses  would 


6  WHO    SHOULD    COUNT   THE    VOTES. 

imply,  it  meant  only  that  a  President  should  be  chosen  for 
that  occasion  only.  The  purpose  was  not  to  define  the  func 
tions  of  any  officer  or  body,  but  to  go  through  the  ceremony 
of  announcing  what  was  already  known,  and  to  set  the 
government  going.  No  decisions  between  existing  parties 
were  to  be  made  ;  no  selection  of  true  votes  from  false  votes, 
but  only  an  addition  of  numbers.  Individual  members  of 
Congress  have  undoubtedly  in  a  few  instances  expressed 
different  views,  but  these  members  have  been  few,  and  they 
have  always  been  in  a  hopeless  minority.  If  any  one  can 
read  the  debates,  the  bills  passed  at  different  times  through 
one  House  or  the  other,  the  joint  resolutions  adopted,  and  the 
accounts  of  the  votes  from  time  to  time  received  or  rejected, 
and  doubt  that  the  two  Houses  of  Congress  have  asserted  and 
maintained,  from  1793  until  now,  their  right  to  accept  or  re 
ject  the  votes  of  States,  and  of  individual  electors  of  States, 
all  that  I  can  say  is,  that  he  must  have  a  marvelous  capacity 
of  doubting.  He  must  ignore  uniform  practice  as  an  expo 
nent  of  constitutions,  and  set  up  his  individual  misreading  of 
words,  reasonably  plain  in  themselves,  against  the  opinions  of 
almost  all  who  have  srone  before  him. 

O 

The  joint  resolution  of  1865  is  of  itself  decisive,  if  a  sol 
emn  determination  of  the  two  Houses  of  Congress,  approved 
by  the  President,  can  decide  anything.  That  resolution  was 
in  these  words : 

"  Whereas,  The  inhabitants  and  local  authorities  of  the  States  of  Vir 
ginia,  North  Carolina,  South  Carolina,  Georgia,  Florida,  Alabama,  Missis 
sippi,  Louisiana,  Texas,  Arkansas,  and  Tennessee,  rebelled  against  the  Gov 
ernment  of  the  United  States,  and  were  in  such  condition  on  the  Sth  day 
of  November,  18<>4,  that  no  valid  election  of  electors  for  President  and 
Vice-President  of  the  United  States,  according  to  the  Constitution  and 
laws  thereof,  was  held  therein  on  said  day:  therefore — 

"  Be  it  resolved,  by  the  Senate  and  House  of  Representatives  of  the 
United  States  of  America,  in  Congress  assembled,  That  the  States  mentioned 
in  the?  preamble  to  this  joint  resolution  are  not  entitled  to  representation 
in  the  electoral  college  for  the  choice  of  President  and  Vice-President  of 
the  United  States  for  the  term  commencing  on  the  4th  day  of  March,  1864, 
and  no  electoral  votes  shall  be  received  or  counted  from  said  States,  con 
cerning  the  choice  of  President  and  Vice-President  for  said  term  of  office." 

In   approving  this   resolution   President   Lincoln   accom- 


WHO    SHOULD    COUNT   THE    VOTES.  7 

pained  it  with  the  following  message,  parts  of  which  I  will 
italicize  : 

<c  To  the  Honorable  the  Senate  and  House  of  Representatives : 

"  The  joint  resolution  entitled  'joint  resolution  declaring  certain  States 
not  entitled  to  representation  in  the  electoral  college,'  has  been  signed  by 
the  Executive,  in  deference  to  the  view  of  Congress  implied  in  its  passage 
and  presentation  to  him.  In  his  own  view,  however,  the  two  Houses  of 
Congress,  convened  under  the  twelfth  article  of  the  Constitution,  have  com 
plete  power  to  exclude  from  counting  all  electoral  votes  deemed  l)y  them  to 
be  illegal,  and  it  is  not  competent  for  the  Executive  to  defeat  or  obstruct 
that  power  by  a  veto,  as  would  be  the  case  if  his  action  were  at  all  essen 
tial  in  the  matter.  He  disclaims  all  right  of  the  Executive  to  interfere  in 
any  way  in  the  canvassing  or  counting  electoral  votes,  and  also  disclaims 
that  by  signing  said  resolution  he  has  expressed  any  opinion  on  the  recitals 
of  the  preamble,  or  any  judgment  of  his  own  upon  the  subject  of  the 
resolution." 

If  this  resolution  of  the  two  Houses  was  authorized  by 
the  Constitution,  there  is  no  ground  for  maintaining  the  pow 
er  of  the  President  of  the  Senate  to  decide  the  question  of 
receiving  or  rejecting  votes.  For,  if  he  has  the  power  under 
the  Constitution,  he  cannot  waive  it,  nor  can  any  action  of 
Congress  take  it  away.  The  resolution  of  1865  had  the 
sanction  of  each  House,  was  signed  by  the  President  of  the 
Senate  and  the  Speaker  of  the  House,  and  was  approved  by 
the  President.  It  should  set  the  question  of  the  power  of 
the  two  Houses  forever  at  rest. 

The  joint  rule,  first  adopted  in  1865,  and  continued  in 
force  for  ten  years,  asserted  the  same  control.  It  should  not 
have  been  adopted  if  the  pretensions  now  set  up  for  the 
President  of  the  Senate  were  of  force  ;  and  he  might  at  any 
time  have  disregarded  it  as  worthless.  But  he  did  not  dis 
regard  it  •  he  did  not  question  it ;  he  obeyed  it. 

The  action  of  the  present  Houses,  moreover,  is  an  affirm 
ance  of  their  right  to  eliminate  the  false  votes  from  the  true. 
Else  why  these  committees  of  each  House,  investigating  at 
Washington  and  in  the  !N~orth  and  South  ?  Are  all  the  labor 
and  expense  of  these  examinations  undertaken  solely  in  order 
that  the  results  may  be  laid  before  the  President  of  the  Sen 
ate  for  his  supreme  judgment  in  the  premises  ?  It  is  safe  to 
say  that  there  is  not  a  single  member  of  either  House  who 


8  WHAT    VOTES    SHOULD    BE    COUNTED. 

would  not  laugh  you  in  the  face  for  asking  seriously  the 
question. 

Assuming,  then,  that  the  power  to  decide  what  votes  shall 
be  counted  belongs  to  the  two  Houses,  how  must  they  exer 
cise  it  ?  Here,  again,  let  me  take  the  illustration  with  which 
I  began,  of  the  coins  upon  a  banker's  counter.  Let  us  sup 
pose  that,  instead  of  one  clerk,  two  were  told  to  count  them 
together.  When  they  came  to  a  particular  coin  upon  which 
they  disagreed,  one  insisting  that  it  was  genuine  and  the  other 
that  it  was  counterfeit,  what  would  then  happen,  if  they  did 
their  duty?  They  would  count  the  rest  and  lay  that  aside, 
reporting  the  disagreement  to  their  superior.  The  two  Houses 
of  Congress  have,  however,  no  superior,  except  the  States  and 
the  people.  To  these  there  can  be  no  reference  on  the  instant ; 
and  the  action  of  the  two  Houses  must  be  final  for  the  occa 
sion. 

There  can  be  110  decision  of  the  Houses  if  they  disa 
gree,  and,  as  no  other  authority  can  decide,  there  can  be  no 
decision  at  all.  The  counting,  including  the  selection,  is  an 
affirmative  act ;  and  as  two  are  to  perform  it,  if  performed  at 
all,  no  count  or  selection  can  be  made  when  the*two  do  not 
concur.  Two  judges  on  the  bench  cannot  render  a  judgment 
when  there  is  a  disagreement  between  them.  No  more  can 
the  two  Houses  of  Congress,  There  is  here  no  pretense  of 
alternative  power,  playing  back  and  forth  between  the  Presi 
dent  of  the  Senate  and  the  two  Houses.  If  the  former  has 
not  power  complete  and  exclusive,  he  has  none.  The  result 
must  be  that,  what  the  two  Houses  do  not  agree  to  count,  can 
not  be  counted. 

WHAT  VOTES  SHOULD  BE  COUNTED. 

This  is  the  second  question.  The  votes  to  be  counted  are 
the  votes  of  the  electors.  But  who  are  the  electors?  The 
persons  appointed  by  the  States,  in  the  manner  directed  by 
their  Legislatures  respectively.  How  is  the  fact  of  appoint 
ment  to  be  proved  ?  These  are  the  subordinate  questions,  the 
answers  to  which  go  to  make  up  the  answer  to  the  main  ques 
tion. 


WHAT    VOTES    SHOULD    BE    COUNTED.  9 

What  are  the  means  of  separating  the  genuine  from  the 
counterfeit  ?  Where  are  the  tests  by  which  to  distinguish  the 
true  votes  from  the  false  ? 

The  words  of  the  Constitution  are  not  many  :  "  Each  State 
shall  appoint,  in  such  manner  as  the  Legislature  thereof  may 
direct,  a  number  of  electors,"  who  shall  meet  and  vote,  "  make 
distinct  lists  of  all  persons  voted  for  as  President  "  .  .  .  "  and 
of  the  number  of  votes  for  each,  which  list,  they  shall  sign  and 
certify  and  transmit  sealed  to  the  seat  of  the  Government  of 
the  United  States,  directed  to  the  President  of  the  Senate." 

Ihe  State  must  appoint,  and  the  appointment  must  be 
made  in  such  manner  as  the  Legislature  thereof  may  direct. 
Here  are  the  two  elements  of  a  valid  appointment,  and  they 
must  concur.  An  appointment  not  made  by  the  State,  or 
not  made  in  the  manner  directed  by  its  Legislature,  is  no  ap 
pointment  at  all. 

There  must  be  State  action  in  the  manner  directed.  If, 
for  example,  an  appointment  were  made  by  a  State  authority, 
such  as  the  Governor,  without  the  sanction  of  the  Legislature, 
it  would  be  void.  If  it  were  made  by  the  people  in  mass-con 
vention,  but  not  in  a  manner  directed  by  the  Legislature,  it 
would  be  void  also.  And  if,  on  the  other  hand,  it  were  made 
in  such  manner  as  the  Legislature  had  directed,  but  not  made 
by  the  State,  it  would  be  equally  invalid.  Indeed,  the  Legis 
lature  may  itself  have  given  a  direction  in  contravention  of 
the  State  constitution,  and  thus  the  direction  prove  a  nullity. 
So,  too,  the  Legislature  may  have  acted  in  contravention  of  the 
Federal  Constitution,  and  for  that  reason  its  direction  may 
have  been  void.  The  appointing  power  is  the  State,  the  man 
ner  of  its  action  is  prescribed  by  the  Legislature  ;  the  valid  au 
thority  and  the  valid  manner  of  its  exercise  must  concur,  to 
make  a  valid  appointment. 

If,  therefore,  the  persons  assuming  the  office  are  not  ap 
pointed  by  the  State,  and  in  the  manner  directed  by  the  Legis 
lature,  they  are  not  electors ;  that  is  to  say,  they  are  not  elec 
tors  de  jure  •  electors  de  facto  they  can  hardly  become,  since 
their  functions  exist  but  for  a  moment,  and  with  one  act  they 
perish.  What  is  an  appointment  by  the  State  ?  How  can  a 
State  appoint?  I  answer,  by  the  people,  the  corporators  of 


10  WHAT    VOTES    SHOULD    BE    COUNTED. 

tlie  body  politic  and  corporate,  or  by  one  of  the  departments 
of  its  government,  as  established  by  its  constitution.  The 
power  to  appoint  cannot  be  renounced  or  divested.  It  must 
ever  remain  in  the  State,  a  living  power,  to  be  called  into 
action  at  each  recurring  election.  It  cannot  be  delegated,  ex 
cept  as  the  different  powers  of  the  State  are  by  its  constitution 
delegated  to  its  great  departments  of  government.  If  it  were 
otherwise,  it  might  be  delegated  to  a  foreign  prince,  and  dele 
gated  in  perpetuity.  It  is  no  answer  to  say  that  such  a  dele 
gation  would  not  be  made ;  the  question  is,  whether  it  could 
be  made,  without  violating  the  Constitution  of  the  country? 
I  insist  that  it  could  not ;  and  that  if  the  Legislature  of  New 
York  were  to  authorize  our  friend  the  Emperor  Alexander, 
or  our  excellent  neighbor  the  Govern  or- General  of  Canada, 
to  appoint  the  thirty-five  presidential  electors  to  which  New 
York  is  entitled  in  the  sum  total  of  the  electoral  colleges,  and 
the  electors  thus  appointed  were  to  receive  the  certificate  of 
the  Governor  of  New  York,  and  to  meet,  vote,  and  transmit 
their  certificates  to  Washington,  the  votes  might  be  lawfully 
rejected.  Such  an  occurrence  is  in  the  highest  degree  im 
probable;  but  stranger  things  than  that  have  happened.  The 
Empress  Catharine  intervened  in  the  election  of  the  kings  of 
Poland,  and  the  interference  led  to  the  downfall  of  the  gov 
ernment  and  the  blotting  of  the  country  from  the  map  of 
Europe.  Indeed,  I  venture  to  express  my  belief,  that  such  an 
intervention  of  foreign  influence  in  our  elections  would  have 
been  hardly  more  startling  to  the  imaginations  of  our  fathers 
than  the  spectacle  which  our  own  eyes  have  seen ;  federal  sol 
diers  removing  representatives  from  the  Capitol  of  one  State, 
and  stationed  at  the  doors  of  another,  to  inspect  the  certificates 
of  members  elected  to  its  Legislature. 

Not  to  go  abroad,  however,  for  illustrations,  let  us  suppose 
that  the  General  Court  convened  in  the  State-House  at  Boston 
were  to  depute  the  State  of  New  York  or  the  State  of  Vir 
ginia  to  appoint  electors  for  the  State  of  Massachusetts,  no  man 
would  be  wild  enough  to  pronounce  such  a  deputation  valid. 
It  should  seem  to  be  certain,  for  a  reason  hardly  less  satis 
factory,  that  the  Legislature  of  Massachusetts  could  not  au 
thorize  the  Mayor  of  Boston  or  the  town  council  of  Worcester 


WHAT   VOTES    SHOULD    BE    COUNTED.  11 

to  appoint  her  electors ;  and,  if  that  be  so.  and  the  rule  is  to  pre 
vail  that,  in  law,  what  cannot  be  done  directly  cannot  be  done 
indirectly,  it  should  follow  that  the  State  could  not  delegate 
to  any  other  agency  the  power  of  appointment.  If  a  body 
called  a  returning  board  be  so  constituted  as  that,  in  certain 
contingencies,  it  may  depart  from  the  inquiry  what  votes  have 
been  cast,  and  cast  the  votes  itself,  or  by  any  sort  of  contriv 
ance  do  the  same  thing  under  a  different  name,  or  by  a  round 
about  process,  it  is,  to  that  extent,  an  unlawful  body  under 
the  Federal  Constitution.  Assuming,  then,  that  a  returning 
board  has  among  its  functions  that  of  rejecting  the  votes  in 
particular  districts,  for  the  reason  either  that  they  were  af 
fected  by  undue  influence,  or  that  other  voters  were  led  by 
like  influence  to  refrain  from  voting,  can  such  a  function  be 
valid  under  the  Constitution  of  the  United  States  ?  There 
is  no  question  here  of  throwing  out  particular  votes  for  vices 
inherent  in  themselves,  such  as  that  they  were  illegible,  or 
were  cast  by  disqualified  persons,  and  the  like  ;  but  the  ques 
tion  is  of  rejecting  the  votes  of  a  certain  number — say  a  thou 
sand  voters — either  because  they  were  unduly  influenced,  or 
because  another  thousand,  who  might  have  voted,  were,  by 
undue  influences,  prevented  from  voting  at  all. 

Whatever  may  be  the  law  of  a  State  in  respect  to  the 
choice  of  its  own  officers,  it  seems  most  reasonable  to  hold 
that,  under  that  common  Constitution  which  governs  and  pro 
vides  for  all  the  States  alike,  when  the  only  legitimate  inquiry 
is  whom  has  a  particular  State  appointed,  in  the  manner  di 
rected  by  its  Legislature,  and  the  Legislature  has  directed 
the  appointment  to  be  made  by  a  general  election,  that 
is,  by  the  votes  of  all  qualified  persons,  the  only  valid 
office  of  a  returning  board  must  be  to  ascertain  and  de 
clare  how  the  State  has  actually  voted,  not  how  it  might 
or  would  have  voted  under  other  circumstances,  or,  in  other 
words,  what  is  the  number  of  legal  votes  actually  cast ; 
not  how  many  have  been  unduly  influenced,  or  how  many 
other  votes  would  have  been  cast  in  a  different  state  of  affairs. 
I  use  the  expression  undue  influence,  as  more  comprehensive 
than  riot,  bribery,  or  intimidation,  and  including  other  forms 
of  improper  influence,  such  as  that  of  capital  over  labor.  The 


12  WHAT    VOTES    SHOULD    BE    COUNTED. 

question  should  be  put  in  a  general  form  to  be  correctly  an 
swered,  because  there  is  nothing  in  intimidation  by  violence 
which  would  make  it  a  good  cause  for  exclusion,  more  than 
that  other  kind  of  intimidation,  which  is  social  or  financial.  If, 
in  ascertaining  the  state  of  the  vote,  it  be  lawful  to  inquire 
whether  certain  voters  were  frightened  by  a  rifle-club  to  stay 
away  from  the  polls,  or  to  vote  as  the  club  dictated,  it  must 
also  be  lawful  to  inquire  whether  the  same  number  of  voters 
were  induced  to  vote  or  not  to  vote  by  fear  that  their  discounts 
might  be  lessened  at  the  village  bank,  or  their  employment 
discontinued  at  the  neighboring  factory.  I  state  the  propo 
sition,  therefore,  as  one  covering  all  kinds  of  undue  influence. 
I  refrain,  however,  from  going  into  the  question  whether  this 
influence  was  or  was  not  exerted,  for  1  am  inquiring  into  the 
law  as  applicable  to  certain  alleged  facts,  leaving  the  truth  of 
the  allegations  to  be  dealt  with  by  others. 

The  sole  object  of  all  the  machinery  of  elections,  the  bal 
lots,  the  ballot-boxes,,  the  canvassers  and  supervisors  of  elec 
tions,  the  returns  and  the  returning  boards,  is,  to  ascertain 
the  will  of  the  people.  Nobody  supposes  that  that  will 
is  ascertained  to  a  certainty.  An  approximation  only  is  pos 
sible  under  our  present  system.  To  say  nothing  of  the  exclu 
sion  of  women  from  an  expression  of  their  will,  a  portion  only 
— though  it  may  be  a  large  portion — of  the  men  express 
theirs.  The  sick,  the  infirm,  the  absent,  say  nothing.  The 
registration  is  always  in  excess  of  the  vote,  and  the  number 
of  voters  falls  short  of  the  registration.  The  reason  is  pat 
ent :  many  voters  are  absent  at  the  time  of  registration,  or 
are  otherwise  unable  or  unmindful  to  register ;  and  when  the 
time  of  voting  arrives  many  of  those  who  are  registered  are 
absent  or  prevented  from  attendance.  The  registration  may 
generally  be  had  on  any  one  of  several  days,  while  the  voting 
is  to  be  done  on  one  day.  The  machinery  is  imperfect  and 
clumsy  at  best ;  but  that  is  not  a  reason  for  making  it  worse, 
or  depriving  ourselves  of  the  advantages  which  it  yields,  not 
withstanding  its  imperfections.  The  nearest  approach  to  ab 
solute  justice  that  we  can  now  hope  to  make  is  to  take  the 
votes  of  all  the  voters  who  offer  themselves,  and  count  the 
votes  that  are  taken.  Every  scheme  of  counting  out  legal 


WHAT  VOTES  SHOULD  BE  COUNTED.         13 

votes  cast,  or  counting  in  votes  not  cast,  must  result  in  con 
fusion,  uncertainty,  and  fraud.  No  matter  how  specious  the 
argument  may  be,  it  will  always  mislead,  for  the  reason  that 
it  must  in  its  nature  substitute  conjecture  for  fact.  The  vote 
must,  of  course,  be  legal,  it  must  be  intelligible  ;  but  such  a 
vote  when  offered  must  be  taken,  and  when  taken  counted. 

The  throwing  out  of  all  the  votes  of  certain  districts  is 
but  another  mode  of  accomplishing  the  same  result  as  would 
be  effected  by  the  rejection  and  addition  of  votes  in  the  cases 
•supposed  :  for,  if  there  be  10,000  voters  in  the  district,  and 
5,000  only  vote,  it  can  make  no  difference  whether  the  5,000 
bo  rejected,  or  be  allowed  to  remain  and  the  same  number 
be  added  to  the  other  side. 

If  the  Legislature  of  a  State  were  to  resolve  beforehand 

D 

that  no  votes  should  be  taken  in  certain  counties  or  parishes, 
•should  we  not  say  that  the  vote  oi  the  remaining  counties 
or  parishes  would  not  express  the  vote  of  the  State?  If,  in  a 
particular  parish,  with  twenty  polling-precincts,  ten  of  the 
precincts  are  so  disturbed  by  violence  that  no  votes  can  be 
taken,  and  in  the  other  ten  there  is  no  violence,  should  the 
votes  of  the  latter  be  taken  as  the  net  result,  or  should  no 
result  be  declared  because  half  of  the  voters  are  prevented 
from  voting  ?  The  practice  of  a  State  must  be  consistent  with 
itself.  When  the  votes  of  three  -  fourths  of  a  State  are 
proffered  as  the  vote  of  the  State,  the  votes  of  three-fourths 
of  a  pari.-h  must  be  received  as  the  vote  of  the  parish.  If 
there  was  not  a  "  fair  and  free  election  "  in  one-fourth  of  the 
parishes,  there  was  not  a  "fair  and  free  election  "  in  the  State; 
and  the  just  result  should  be,  that,  instead  of  rejecting  the 
votes  of  those  parishes  because  a  portion  of  the  voters  were 
intimidated,  the  votes  of  the  State  should  be  rejected  alto 
gether. 

But  why,  let  me  ask,  should  lawful  votes  in  any  case  be 
rejected,  because  other  lawful  votes  might  have  been  given  \ 
'  If  they,  whose  votes  were  cast,  had  prevented  other  votes  from 
being  also  cast,  that  might  be  a  reason  for  punishing  the  former. 
But  if  the  former  were  blameless,  where  is  the  justice  of  pun 
ishing  them  for  the  faults  of  others  ?  Suppose  a  parish  with 
10,000  persons  entitled  to  vote,  and  divided  into  ten  precincts. 


J4  WHAT    VOTES    SHOULD    BE    COUNTED. 

Ordinarily  only  8,000  will  register  and  6,000  vote ;  the  vote  of 
the  6,000  being  assumed  to  be  an  expression  of  the  will  of  the 
10,000.  At  a  particular  election  3,000  persons  vote  in  five  of 
the  precincts.  In  the  other  five  only  1,000  vote,  there  being 
disturbances  on  or  before  the  day  of  election.  It  is  alleged 
that  the  last  1,000  votes  should  not  be  counted.  Why  not? 
Because,  say  the  objectors,  2,000  persons  did  not  vote,  and 
it  is  to  be  presumed,  first,  that  they  were  kept  from  the 
polls  by  fear,  and,  next,  that  if  they  had  voted  at  all,  they 
would  have  outvoted  the  1,000.  Are  not  these  the  merest 
assumptions  ?  You  cannot  get  the  truth  without  knowing 
the  motives  which  kept  voters  away,  and  how  they  would 
have  voted  if  they  had  come.  You  cannot  know  either  with 
certainty,  without  examining  all  the  voters.  And  the  theory 
which  would  lead  you  to  call  them  for  examination  should 
also  lead  you  to  call  all  who  in  other  cases  have  not  voted,  to 
ask  why  they  kept  away,  and  how  they  would  have  voted  if 
they  had  been  present.  The  argument  which  justifies  the  ex 
clusion  in  case  of  intimidation  would  include  all  cases  of  ab 
sence  and  of  inquiry  into  what  would  have  been  the  result 
if  there  had  been  no  absence.  Intimidation  is  one  kind  of 
undue  influence ;  expectation  of  benefit  is  another ;  fear  of 
social  ostracism  is  another:  will  you  go  into  them?  There 
seems  no  middle  course  between  excluding  all  inquiry  into 
the  causes  of  absence  and  the  probable  votes  of  the  absent, 
and  allowing  it  in  every  instance  where  persons  entitled  to 
vote  have  not  voted.  To  my  thinking,  a  certificate  given 
after  the  elimination  of  votes,  in  the  manner  indicated,  certi 
fying  that  the  electors  have  been  chosen  by  the  people  of  the 
State,  is  a  palpable  falsehood.  It  should  have  certified  that 
they  had  been  chosen  by  the  people  of  so  many  parishes  or 
counties,  out  of  the  whole  number. 

It  is  impossible,  without  deranging  our  system  of  election,, 
either  to  reject  votes  actually  cast,  out  of  consideration  for 
the  motives  with  which  they  were  cast,  or  to  add  to  them  the 
supposed  votes  which  might  have  been  cast.  The  ballot  it 
self  is  a  standing  protest  against  inquiry  into  motives.  It  en 
joins  and  protects  the  secret  of  the  hand ;  much  more  should 
it  enjoin  and  protect  the  secret  of  the  heart.  And  as  for  add- 


WHAT    VOTES    SHOULD    BE    COUNTED.  15 

ing  votes,  on  the  supposition  that  they  might  or  would  have 
been  cast  but  for  untoward  circumstances,  no  plausible  reason 
can  be  given  for  it  which  would  not  apply  to  any  case  of  dis 
appointment  in  the  fullness  of  the  vote.  A  rainy  day  of  e  lec 
tion  costs  one  of  the  parties  thousands  of  ballots.  If  it  hap 
pen  to  rain  on  that  day,  why  not  order  a  new  election  in 
better  weather;  or,  to  save  that  formality,  make  an  esti 
mate  of  the  number  who  would  have  attended  under  a 
cloudless  sky,  and  add  their  ballots  to  one  side  or  the  other? 
The  rejection  of  the  votes  of  a  parish  can  be  justified,  if 
justifiable  at  all,  only  on  the  ground  that  the  votes  cast  do 
not  give  the  voice  of  the  parish,  either  because  they  did  not 
express  the  real  wishes  of  the  voters,  or  because  they  would 
have  been  overborne  by  other  votes  if  they  could  have  been 
cast. 

Does  not  the  foregoing  reasoning  lead  to  this  conclusion, 
that  whether  the  charges  of  intimidation  in  certain  counties 
or  parishes  of  a  State  be  founded  in  fact  or  in  error,  they  do 
not  warrant  the  rejection  of  the  votes  actually  cast  in  those 
counties  or  parishes ;  and,  furthermore,  that  they  who  insist 
upon  such  rejection  must  accept,  as  a  logical  conclusion,  the 
rejection,  for  a  like  reason,  of  the  votes  of  the  w^hole  State  ? 
I  submit  that  such  are  the  inevitable  conclusions. 

It  is  insisted,  however,  that  this  is  an  inquiry  which  cannot 
be  gone  into  in  the  present  state  of  the  canvass.  Certificates 
have  been  sent  to  Washington,  purporting  to  give  the  result  of 
the  election.  The  question  will  probably  arise,  at  the  meet 
ing  of  the  two  Houses,  in  this  manner :  Two  certificates  are 
required,  one  signed  by  the  electors,  pursuant  to  the  Constitu 
tion,  certifying  their  own  votes ;  and  the  other  signed  by  or 
under  the  direction  of  the  Governor  of  the  State,  pursuant  to 
act  of  Congress,  certifying  the  appointment  of  the  electors. 
Both  certificates  are  sent  to  the  President  of  the  Senate,  in 
one  envelope.  It  may  indeed  happen  that  two  envelopes 
come  from  the  same  State,  each  containing  two  certificates  of 
rival  governors,  and  rival  electors.  If  there  is  but  one  en 
velope,  one  of  the  certificates  which  should  be  there  may  be 
omitted,  or  may  be  imperfect.  In  all  these  cases,  it  is  mani 
festly  incumbent  upon  the  two  Houses  to  receive  or  reject,  in 


It)  WHAT    VOTES    SHOULD    BE    COUNTED. 

the  exercise  of  their  judgment.  But  if  one  envelope  only  is 
presented,  containing  the  two  certificates,  both  in  due  form, 
and  objection  is  nevertheless  made  that  the  certificate  of  the 
appointment  of  electors  is  false,  can  the  objection  be  enter 
tained  ?  There  are  those  who  affirm  that  it  cannot.  They 
reason  in  this  wise :  The  States  are  to  appoint  the  electors, 
and  may  therefore  certify  such  as  they  please.  But  is  not  ('hat 
a  non  sequitur  f  The  States  may  appoint  whom  they  please, 
in  such  manner  as  their  Legislatures  have  directed  ;  but  an  ap 
pointment  and  a  certificate  are  different  things.  The  latter 
is,  at  the  very  best,  only  evidence  of  the  former.  The  fact  to 
be  determined  is  the  appointment ;  the  certificate  is  produced 
as  evidence ;  it  may  be  controvertible  or  incontrovertible, 
as  the  law  may  have  provided,  but  there  is  nothing  in  the  na 
ture  of  a  certificate  which  forbids  inquiry  into  its  verity  ;  it 
is  not  a  revelation  from  above  ;  it  is  a  paper  made  by  men, 
fallible  always,  and  sometimes  dishonest  as  well  as  fallible ; 
and,  if  honest,  often  deceived.  It  is  made  generally  in  secret 
and  ex  parte,  without  hearing  both  sides,  without  oral  testi 
mony,  without  cross-examination.  Of  such  evidence  it  may 
be  safely  affirmed,  that  it  is  never  made  linal  and  conclusive 
•wi tii out  positive  law  to  that  express  effect. 

Kow,  it  may  be  competent  for  the  Legislature  of  a  State, 
under  its  own  constitution,  to  determine  how  far  one  of  its 
own  records  shall  be  conclusive  between  its  own  citizens.  It 
may  enact,  that  the  certificate  of  a  judge  of  a  court  of  rec 
ord,  of  a  sheriff,  a  county  commissioner,  a  board  of  tax  as 
sessors,  or  a  board  of  State  canvassers,  shall  or  shall  not  be 
"open  to  investigation.  There  is,  however,  no  act  of  Congress 
'on  the  subject  of  the  present  inquiry,  and  we  are  left  to  the 
Constitution  itself,  with  such  guides  to  its  true  interpretation 
•as  are  furnished  by  just  analogy  and  by  history.  If  it  can  be 
shown  that  the  certificate  was  corruptly  made,  by  the  perpe 
tration  of  gross  frauds  in  tampering  with  the  returns,  must  it 
nevertheless  flaunt  its  falsehood  in  the  faces  of  us  all,  without 
the  possibility  of  contradiction  ?  A  President  is  to  be  de 
clared  elected  for  thirty-eight  States  and  forty-two  millions 
of  people  ;  the  declaration  depends  upon  the  voice,  we  will 
suppose,  of  a  single  State  ;  that  voice  ib  uttered  by  her  votes; 


WHAT   VOTES   SHOULD   BE   COUNTED.  1? 

to  learn  what  those  votes  are,  we  are  referred  to  a  certificate, 
and  told  that  we  cannot  go  behind  it.  In  such  case,  to  assert 
that  the  remaining  thirty-seven  States  are  powerless  to  in 
quire  into  the  getting  up  of  this  certificate,  on  the  demand  of 
those  who  offer  to  prove  the  fraud  of  the  whole  process,  is  to 
assert  that  we  are  the  slaves  of  fraud,  and  cannot  take  our 
necks  from  the  yoke*  I  do  not  believe  that  such  is  the  law 
of  this  land,  and  I  give  these  reasons  for  my  belief. 

In  the  absence  of  express  enactments  to  the  contrary,  any 
judge  may  inquire  into  any  fact  necessary  to  his  judgment. 
The  point  to  be  adjudged  and  declared  in  the  present  case  is, 
who  has  received  a  majority  of  the  electoral  votes,  that  is,  of 
valid  electoral  votes,  not  who  has  received  a  majority  of  cer 
tificates.  A  President  is  to  be  elected,  not  by  a  prepon 
derance  of  certification,  but  by  a  preponderance  of  voting. 
The  certificate  is  not  the  fact  to  be  proved,  but  evidence  of 
the  fact,  and  one  kind  of  evidence  may  be  overcome  by  other 
and  stronger  evidence,  unless  some  positive  law  declares  that 
the  weaker  shall  prevail  over  the  stronger,  the  false  over  the 
true.  There  may,  as  I  have  said,  be  cases  where,  for  the 
quieting  of  titles,  or  the  ending  of  controversies,  a  record  or  a 
certificate  is  made  unanswerable ;  that  is,  though  it  might  be 
truthfully  answered,  the  law  will  not  allow  it  to  be  answered. 
Such  cases  are  exceptional,  and  the  burden  of  establishing 
them  rests  upon  him  who  propounds  them.  Let  him,  there 
fore,  who  asserts  that  the  certificate  of  a  returning  board  can 
not  be  answered  by  any  number  of  living  witnesses  to  the 
contrary,  show  that  positive  law  which  makes  it  thus  unan 
swerable.  There  is  certainly  nothing  in  the  Constitution  of 
the  United  States  which  makes  it  so,  as  there  is  no  act  of. 
Congress  to  that  effect. 

A  certificate  of  a  board  of  returning  officers  has  nothing  to 
liken  it  to  a  judicial  record  of  contentions  between  parties. 
The  proceeding  is  ex  parte  ;  or,  if  there  be  parties,  the  other 
States  of  the  Union  are  not  represented,  however  much  their 
rights  may  be  affected ;  the  evidence  is  in  part  at  least  by 
one-sided  affidavits;  the  judges  may  be  interested  and  partiaL 
What  such  a  board  has  about  it  to  inspire  confidence  or  com^ 
uiand  respect-,  it  is  hard  to  perceive*  If  there  be  any  presump^ 
2 


W  WHAT  "VOTES    SHOULD   BE    COUNTED. 

tion  in  its  favor,  or  in  favor  of  the  justice  of  its  judgments, 
the  presumption  is  as  far  from  indisputable  as  a  disputable 
presumption  can  ever  be. 

To  recapitulate,  we  may  formulate  the  question  in  this 
manner:  Whom  has  the  State  appointed  to  vote  in  its  'be 
half  for  President?  The  manner  of  appointment  is  the 
vote  of  the  people,  for  the  Legislature  has  so  directed.  Who, 
then,  are  appointed  by  the  people?  To  state  the  question 
is  nearly  equivalent  to  stating  what  evidence  is  admissible ;  for 
the  question-  is  not,  who  received  the  certificate,  but  who  re 
ceived  the  votes ;  and  any  evidence  showing  what  votes  were 
cast  and  for  whom  is  pertinent  and  must  therefore  be  admis 
sible,  unless  excluded  by  positive  law.  The  law  by  which  this 
question  is  to  be  decided  is  not  State,  but  Federal.  If  it  were 
otherwise,  the  State  officers  might  evade  the  Constitution  alto 
gether,  for  this  ordains  that  the  appointment  shall  be  by  the 
State,  and  in  such  manner  as  its  Legislature  directs  ;  but  if  the 
State  certificate  is  conclusive  of  the  fact,  the  State  authorities 
may  altogether  refuse  obedience  to  the  constitution  andlaws,and 
save  themselves  from  the  consequences  by  certifying  that  they 
have  obeyed  them.  And  they  may  in  like  manner  defraud  us 
of  our  rights,  making  resistance  impossible,  by  certifying  that 
they  have  not  defrauded.  Indeed,  they  might  make  shorter 
work  of  it,  and  omit  the  election  altogether,  writing  the  cer 
tificate  in  its  stead. 

If  the  Governor  of  Massachusetts  were  to  certify  the  elec 
tion  of  the  Tilden  electors,  and  their  votes  were  to  be  sent  ta 
Washington,  instead  of  those  which  the  Hayes  electors  have 
just  given  in  the  face  of  the  world,  must  the  Tilden  votes  be 
counted?  Must  this  nation  bow  down  before  a  falsehood? 
To  ask  the  question  is  to  answer  it.  There  is  no  law  to  re 
quire  it;  there  can  be  none  until  American  citizens  become 
slaves.  The  nature  of  the  question  to  be  determined,  the 
absence  of  any  positive  law  to  shut  out  pertinent  evidence, 
the  impolicy  of  such  an  exclusion,  its  injustice,  and  the  im 
possibility  of  maintaining  it,  if  by  any  fatality  it  were  for  a 
time  established — all  these  considerations  go  to  make  and  for 
tify  the  position,  that  whatever  body  has  authority  to  decide 
how  a  State  has  voted,  has  authority  to  draw  information 


THE    REMEDY  FOR    A    WRONG    COUNT.  19 

from  all  the  sources  of  knowledge.  The  superstitious  vener 
ation  of  a  certificate,  which  would  implicitly  believe  it, 
and  shut  the  eve  to  other  evidence,  is  as  revolting  as  that  of 
the  poor  negro  in  the  swamps  of  Congo,  who  bows  down  be 
fore  his  fetich.  The  idolaters,  mentioned  in  Scripture,  who 
took  a  tree  out  of  the  wood,  burned  one  part  of  it,  hewed 
the  other,  and  then  worshiped  it,  were  only  prototypes  of  the 
men  of  our  day,  who  bow  down  before  a  piece  of  paper, 
signed  in  secret  fourteen  hundred  miles  away,  asserting  as 
true  what  they  know  or  believe  to  be  false. 

It  were  useless,  therefore,  to  inquire  how  far  the  laws  of  a 
State  make  the  certificate  of  a  board  of  canvassers  or  of  returns 
conclusive  evidence  of  the  result  of  an  election  held  in  the 
State.  It  may  be  admitted  that  the  Supreme  Court  of  Louisi 
ana,  for  example,  has  denied  its  own  competency  to  go  behind 
the  certificate  of  the  board;  but  even  that  decision  is  entitled 
to  no  respect,  being  made  in  contravention  of  an  express  pro 
vision  of  the  State  statute,  as  the  dissenting  opinion  of  one  of 
the  judges  clearly  shows.  Every  other  State  of  the  Union, 
save  perhaps  one,  has  decided  that  the  certificate  is  impeach- 
able,  even  in  a  case  wrhere  the  statute  declares  that  the  canvass 
ers  shall  "  determine  what  persons  have  been  elected."  The 
opinion  of  the  Supreme  Court  of  Wisconsin,  an  extract  from 
which  is  given  in  the  Appendix,  states  and  decides  the  point 
with  clearness  and  unanswerable  force.  • 

If  what  has  been  said  be  founded  in  sound  reason,  the 
two  Houses  of  Congress,  when  inquiring  what  votes  are  to  be 
counted,  have  the  right  to  go  behind  the  certificate  of  any 
officers  of  a  State,  to  ascertain  who  have  and  who  have  not 
been  appointed  electors.  The  evidence  which  these  Houses 
will  receive  upon  such  inquiry  it  is  for  them  and  them  only  to 
prescribe,  in  the  performance  of  their  highest  functions  and 
the  exercise  of  their  sincerest  judgment. 

THE  REMEDY  FOR  A  WRONG  COUNT 

is  the  remaining  question.  Hitherto,  I  have  endeavored  to 
state  in  a  popular  manner  the  existing  law,  as  I  understand 
it.  I  will  now  ask  a  consideration  of  the  needs  of  future 
legislation.  If  there  be  anything  obscure  in  the  present  law, 


20  THE   REMEDY    FOR    A    WROKG 

Congress  has  the  power  to  make  it  clear ;  if  there  be  danger 
in  our  present  condition,  Congress  can  remove  the  danger. 
There  are  various  ways  of  doing  it. 

One  is  to  provide  for  a  judicial  committee  of  the  two 
Houses,  to  sit  in  judgment,  as  if  they  were  judges,  and  pro 
nounce  upon  the  result  of  the  evidence.  The  English  House 
of  Commons  used  to  reject  or  admit  members,  from  considera 
tions  of  party.  Englishmen  have  thought  that  they  had  at 
"last  succeeded  in  establishing  a  tribunal  which  would  decide 
with  impartiality  and  justice.  We  should  be  able  to  devise 
means  equally  sure  of  arriving  at  a  result  just  in  itself,  and 
•  satisfactory  to  all.  The  considerations  in  favor  of  a  judicial 
committee  of  the  two  Houses  are  cogent,  though  they  may 
not  be  conclusive.  They  are,  the  necessity  of  a  speedy 
decision,  and  the  desirableness  of  keeping,  if  possible,  the  or 
dinary  courts  out  of  contact  with  questions  of  the  greatest 
•political  significance. 

But  if  it  be  found  impossible  to  agree  upon  the  formation 
of  such  a  committee,  then  a  resort  to  the  courts  should  cer 
tainly  be  had.  The  public  conscience  must  be  satisfied  that 
the  person  sitting  in  our  highest  seat  of  magistracy  is  there 
by  a  just  title;  and  it  can  be  satisfied  of  that,  in  doubtful 
cases,  only  by  a  judicial  inquiry. 

An  act  of  Congress  might  provide  either  for  the  case  of 
a  double  declaration  of  the  votes,  one  by  each  House  of  Con 
gress,  or  of  a  single  declaration  by  the  two  Houses  acting  in 
concert.  In  either  case  the  Supreme  Court  could  be  reached 
only  by  appeal,  and  the  court  of  first  instance  might  be  either 
the  Supreme  Court  of  the  District  of  Columbia  or  any  of  the 
Circuit  Courts.  The  Court  of  the  District  should  seem  to  be 
the  most  convenient,  the  most  speedy,  and  the  most  appro 
priate,  as  being  at  the  seat  of  Government. 

For  the  case  of  a  double  declaration  it  might  be  provided, 
that  if,  upon  the  counting  of  the  votes  the  Senate  should  find 
one  person  elected  and  the  House  another,  an  information 
should  be  immediately  filed  in  the  Supreme  Court  of  the 
District,  in  the  name  of  United  States,  against  both  the  per 
sons  thus  designated,  alleging  the  fact,  and  calling  upon  each 
to  sustain  his  title.  The  difficulty  of  this  process  would  be 


THE    REMEDY    FOE    A    WKONG    COUNT.  2 

llow  to  expedite  the  proceedings  so  that  a  decision  should  be  had 
before  the  4th  of  March,  in  order  to  avoid  an  interregnum. 
But  I  think  this  difficulty  could  be  overcome.  To  this  endN, 
-the  time  of  the  courts  engaged  in  the  case  should  be  set  apart 
for  it.  The  rival  claimants  would  naturally  be  in  Washing^ 
ton,  prepared  for  the  investigation.  The  evidence  previously 
taken  by  the  two  Houses— for  they  would  assuredly  have 
taken  it— could  be  used,  with  the  proper  guards  against  hear 
say  testimony,  and  any  additional  evidence  necessary  would 
probably  be  ready,  if  the  claimants  or  'their  -friends  knew 
beforehand  that  a  trial  was  likely  to  be  had.  It  might  indeed 
happen  that  the  questions  to  be  decided  would  involve  little 
dispute  about  facts;  as,  for  example,  the  present  Oregon 
case.  It  should  be  provided  that  the  trial  must  be  con 
cluded  and  judgment  pronounced'  within  a  certain  num 
ber  of  days,  either  party  being  at  liberty  to  appeal,  within 
twenty-four  hours  after  the  judgment,  to  the  Supreme  Court 
of  the  United  States,  by  which  the  appeal  should  be  heard 
and  decided  before  the  4th  day  of  March. 

In  case  of  a  single  declaration,  and  consequent  induc 
tion  into  office,  an  information  might  be  tiled  in  the  Supreme 
Court  of  the  District  in  the  names  of  the  United  States  and 
the  claimant,  against  the  incumbent,  and  proceedings  carried 
on  in  the  ordinary  manner  of  proceedings  in  the  nature  of 
quo  warranto. 

Any  lawyer  could  readily  frame  a  bill  to  embrace  these 
several  provisions.  An  amendment  of  the  Constitution  would 
not  be  necessary.  The  provisions  would  operate  as  a 
check  upon  fraud.  They  would  furnish  a  more  certain 
means  of  establishing  the  right.  The  objection  that  the 
courts  would  thus  be  brought  into  connection  with  poli 
tics  is  the  only  objection.  But  the  questions  which  they 
would  be  called  upon  to  decide,  would  be  questions  of  law 
and  fact,  judicial  in  their  character,  and  kindred  to  those 
which  the  courts  are  every  day  called  upon  to  adjudge. 
The  greatness  of  the  station  is  only  a  greater  reason  for 
judicial  investigation.  The  dignity  of  the  presidential  of 
fice  is  not  accepted  as  a  reason  why  the  incumbent  should 
not  be  impeached  and  tried.  It  can  be  no  more  a  reason  why 


23  THE   BEMEDY    FOR    A    WRONG    COUNT. 

a  usurper  should  not  be  ousted  and  a  rightful  claimant  ad 
mitted.  The  President  is  undoubtedly  higher  in  dignity  and 
greater  in  power  than  the  Governor  of  a  State,  but  the  reasons 
why  the  title  of  a  Governor  should  be  subjected  to  judicial 
scrutiny  are  of  the  same  kind  as  those  which  go  to  show  that 
the  title  of  a  President  of  the  United  States  should  be  sub 
jected,  upon  occasion,  to  a  like  scrutiny.  The  process  was 
tried  and  found  useful  in  the  Capitol  of  Wisconsin,  and,  for 
similar  reasons,  it  may  be  tried  and  found  useful  in  the  Capitol 
of  the  Union.  So  far  from  degrading  the  office,  or  oifending 
the  people  to  whom  the  office  belongs,  it  can  but  help  to  make 
fraud  less  defiant  and  right  more  safe,  and  add  a  new  crown 
to. the  majesty  of  law.  That  triumph  of  peace  and  justice  in 
Wisconsin  has,  to  the  eye  of  reason,  given  an  added  glory  to 
her  prairies  and  hills,  and  a  brighter  light  to  the  waters  of  her 
shining  lakes. 


APPENDIX. 

Observations  of  Chief-Justice  Whiton,  of  Wisconsin,  respect 
ing  the  force  of  a  certificate  of  canvassers  : 

"  Before  proceeding  to  state  oar  views  in  regard  to  the  law  regulating 
the  canvass  of  votes  by  the  State  canvassers,  we  propose  to  consider  how 
far  the  right  of  a  person  to  an  office  is  affected  by  the  determination  of  the 
canvassers  of  the  votes  cast  at  the  election  held  to  choose  the  officer. 
Under  our  constitution,  almost  all  our  officers  are  elected  by  the  people. 
Thus  the  Governor  is  chosen,  the  constitution  providing  that  the  person 
having  the  highest  number  of  votes  for  that  office  shall  be  elected.  But 
the  constitution  is  silent  as  to  the  mode  in  which  the  election  shall  be 
conducted,  and  the  votes  cast  for  Governor  shall  be  canvassed  and  the  re 
sult  of  the  election  ascertained.  The  duty  of  prescribing  the  mode  of  con 
ducting  the  election,  and  of  canvassing  the  votes  was,  therefore,  devolved 
upon  the  Legislature.  They  have  accordingly  made  provision  for  both, 
and  the  question  is,  whether  the  canvass,  or  the  election,  establishes  the 
right  of  a  person  to  an  office.  It  seems  clear  that  it  cannot  be  the  former, 
because  by  our  constitution  and  laws  it  is  expressly  provided  that  the 
election  by  the  qualified  voters  shall  determine  the  question.  To  hold 
that  the  canvass  shall  control,  would  subvert  the  foundations  upon  which 
our  government  rests.  But  it  has  been  repeatedly  contended  in  the  course 
of  this  proceeding  that,  although  the  election  by  the  electors  determines 
the  right  to  the  office,  yet  the  decision  of  the  persons  appointed  to  canvass 
the  votes  cast  at  the  election,  settles  finally  and  completely  the  question 
as  to  the  persons  elected,  and  that,  therefore,  no  court  can  have  jurisdic 
tion  to  inquire  into  the  matter.  It  will  be  seen  that  this  view  of  the  ques 
tion,  while  it  recognizes  the  principle  that  the  election  is  the  foundation 
of  the  right  to  the  office,  assumes  that  the  canvassers  have  authority  to 
decide  the  matter  finally  and  conclusively.  "We  do  not  deem  it  necessary 
to  say  anything  on  the  present  occasion  upon  the  subject  of  the  jurisdic 
tion  of  this  court,  as  that  question  has  already  been  decided,  and  the  rea 
sons  for  the  decision  given.  Bearing  it  in  mind,  then,  that  under  our 
constitution  and  laws,  it  is  the  election  to  an  office,  and  not  the  canvass 
of  the  votes,  which  determines  the  right  to  the  office,  we  will  proceed  to 
inquire  into  the  proceedings  of  the  State  canvassers,  by  which  they  deter- 
-mined  that  the  respondent  was  duly  elected."— (4  Fife.,  Y92.) 


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A   COMPLETE    OFFICIAL    RECORD 

OF  THE  PROCEEDINGS  OF  CONGRESS  AT  THE  COUNTING 
OF  THE  ELECTORAL  VOTES  IN  ALL  THE  ELECTIONS 
OF  PRESIDENT  AND  VICE-PRESIDENT  OF  THE 
UNITED  STATES;  TOGETHER  WITH  ALL  CON 
GRESSIONAL  LEGISLATION  INCIDENT  ^'H' 
THERETO,  OR  TO  PROPOSED  LEG 
ISLATION    UPON \THAT 
SUBJECT.    \ 

WITH    AN    ANALYTICAL    INTRODUCTION. 


One  large  8vo  Volume,  750  Pages,  Paper  Covers,  Price, 


THE  decision  of  the  aggregate  votes  cast  for  a  President  is  ^the 
greatest  and  most  important  act  relating  to  every  such  election. 
How  shall  it  be  done  ?  How  shall  the  result  be  peacefully  and 
justly  decided  ?  How  shall  the  votes  be  counted  ?  Upon  the  satis 
factory  solution  of  this  question  hangs  the  existence  of  the  Govern 
ment.  In  these  pages  the  reader  will  find  all  that  has  been  proposed 
or  said  in  Congress  on  the  subject,  together  with  the  entire  official 
action  of  Congress  in  counting  the  votes  at  every  previous  presi 
dential  election. 

All  the  congressional  debates  on  this  subject  are  printed  verbatim 
from  the  reports  in  "The  Annals  of  Congress,"  "Congressional 
Globe,"  and  "  Congressional  Record,"  and  in  every  case  the  pages 
of  the  original  work  are  given. 

D/APPLETON   &  CO.,   Publishers, 

&  551  Broadway,  New  York* 


THIS  BOOK  IS  DUE  ON  THE  LAST  DATE 
STAMPED  BELOW 


AN  INITIAL  FINE  OF  25  CENTS 

WILL  BE  ASSESSED  FOR  FAILURE  TO  RETURN 
THIS  BOOK  ON  THE  DATE  DUE.  THE  PENALTY 
WILL  INCREASE  TO  SO  CENTS  ON  THE  FOURTH 
DAY  AND  TO  $1.OO  ON  THE  SEVENTH  DAY 
OVERDUE. 


U3L 


NOV  18  19b/ 


•«s  ***> 


OCT23  19& 


D  21-100m-12,'43  (8796s) 


Gaylamount 
Pamphlet 

Binder 
Gaylord  Bros.,  Inc. 

Stockton,  Calif. 
T.  M.  Reg.  U.S.  Pat.  Off. 


M114750 


F3 


THE  UNIVERSITY  OF  CALIFORNIA  LIBRARY 


